Opinion
October 10, 1930.
Appeal from Supreme Court of Oswego County.
William S. Hillick, for the appellant.
Don Carlos Buell, for the respondent.
Present — SEARS, P.J., CROUCH, TAYLOR, EDGCOMB and CROSBY, JJ.
In our opinion the burden of proving the amount unpaid on the defendant Albert A. Durfey's contract, of which the plaintiff was the assignee, rested upon the plaintiff. ( Conkling v. Weatherwax, 181 N.Y. 258.) This burden the plaintiff sustained. The defendant Albert A. Durfey by the judgment is credited with the payment of more than the amount of all the installments which fell due before the date of the assignment of the contract to the plaintiff, and more than all the interest to that date. The plaintiff himself testified as to what payments he had received since he became the assignee and the non-payment of the balance of the debt which fell due after the date of the assignment to him. It was not necessary for him to produce proof that the defendant Albert A. Durfey had not, before the plaintiff received the assignment, made payments in anticipation of installments falling due after the assignment. As to the period before the date of the assignment to the plaintiff, the plaintiff could rely on the fact that the installments for which he has recovered judgment, had not then fallen due. This was sufficient proof of non-payment of such installments.
All concur.
Judgment affirmed, with costs.